Federal Unions Win DHS Personnel System Decision in Federal Appeals Court

Today, the U. S. Court of Appeals for the District of Columbia Circuit issued its long awaited ruling in the Department of Homeland Security (DHS) personnel reform.  NFFE, along with sister unions, prevailed in a resounding victory.

In an unanimous decision from a largely conservative bench, the court upheld Judge Collyer’s decision below, stating that the new rules on collective bargaining violate the statutory command in the Homeland Security Act (HSA) that DHS “ensure” collective bargaining for its employees.  Further, the D.C. Circuit expanded the lower court’s decision by holding that the DHS rules inappropriately restrict bargaining by ‘shrinking’ “the scope of bargaining well below what Chapter 71 provides.”  “Congress was ‘not writing on a clean slate’ when it enacted the HSA.  “We conclude that Chapter 71 must inform the substantive meaning of collective bargaining” for the purpose of these new labor relations rules.  Thus, the appellate court concluded that restrictions placed on bargaining over appropriate arrangements and operational matters, along with the expansive reading of management rights, violated the HSA by rendering the scope of bargaining “virtually nil”.  The court went on to uphold the lower court’s decision when Collyer found that DHS exceeded it authority when it attempted to “co-opt” FLRA’s administrative machinery” in the review of labor relations disputes but voicing no opinion in the independence and make up of the internal DHS labor relations board.  Although the court affirmed the lower court on the role of the MSPB and found the mitigation of penalties claim not ripe for review, the court concluded by affirming Judge Collyer’s injunction on the entire labor relations section of the DHS regulations.

“The DHS appellate decision sends a clear message:  DHS cannot re-invent collective bargaining in absence of Chapter 71, which form the ‘common dominator of the public sector collective bargaining,” stated NFFE General Counsel, Susan Tsui Grundmann.